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Righting Crime

Conservative Criminal Justice as Common Sense

Crime and Political Ideology

Introduction

"An eye for an eye" captures the conservative
model of punishment in contemporary western societies. That is,
when a wrong is done to an innocent person, the wrongdoer must be severely punished
in order to "even the books" and stand as an example to deter other wrongdoers.
Its advocates often call this punishment model the "law-and-order" model."

In contrast, the liberal punishment model emphasizes the rights of the accused,
humane (not "cruel and unusual") punishment, and rehabilitation of those convicted
of a crime. Conservatives and rightists belittle this model as "soft on crime." In the
United States, the two opposing models compete in the realms of culture and public
policy. For most of U.S. history, the harsher punishment model has been so
dominant that it is part of our international image. We are the country where we "hang
'em high." Only in an exceptional period does the principle and practice of redemption
gain the upper hand.

What explains the U.S. inclination to favor the law-and-order punishment
model? Certainly in times of social tension and economic unpredictability, the punishment
paradigm is especially appealing. When people feel vulnerable and insecure,
rationally or not, they often look for someone, some thing, or some group to blame.
Because racism pervades U.S. society as a whole, people of color, especially African
Americans, who cluster at the lower end of the economic ladder, are close at hand to
serve for White people as "the other," as a source of criminal threat for the dominant
population. (See Box on White Fear). And it is often true even for people whom White
people have labeled as "the other," but don't see themselves as attached to, or identified
with, those labeled criminals.

A convergence of several of the conditions that create social tension- for
instance, hard economic times, rapid social change and/or a high crime rate- create
hospitable climate for an upsurge of the law-and-order paradigm. If rightists hold
political power and rightist cultural values are dominant at the time these conditions
prevail, they are likely to work to strengthen public support for this paradigm, usually
by emphasizing an "us/them" dichotomy that demonizes criminals and expands the
definition of criminal behavior.

Only a powerful political force can push against the historical U.S. preference for
harsh punishment model. A strong progressive movement can mount a countervailing
political analysis that promotes an understanding of the root causes of crime,
critiques the law enforcement and criminal justice systems, and emphasizes rehabilitation
and rights for criminal defendants and prisoners. Such an analysis is associated
with liberal politicians, activists and advocates. A progressive analysis that questions
the very right of the State to incarcerate its citizens rarely garners widespread public
support.

However, even when liberal arguments gain political strength and acceptance, the
policies that follow merely moderate the punishment model. A period of such moderation
occurred in the 1960s and 1970s, when liberalism became strong enough to
challenge the existing criminal justice system. Liberal publications, speakers at
demonstrations, and political leaders talked about "equality" and "the dead-end life of
the ghetto" as a place of no opportunity, and promoted a model of rehabilitation for
criminals. This model focused on acknowledging that criminals were often the product
of poverty and economic segregation, and that society should respond to behavior
deemed criminal with education and opportunity as a form of crime prevention,
and training while the criminal paid his/her debt to society.

But in those same decades, a conservative backlash began to gain popularity. By
the end of the 1970s, the New Right, a growing social and political movement
whose central program was to attack liberal ideas and practices, had labeled the liberal
model the "coddling" of criminals. The New Right directed its message- that the
country appeared to be spinning out of control - to White men, conservative Christians,
and White Southerners. "Middle Americans," feeling they were losing status and financial
security in a time of social change, were encouraged by rightists to
fear "chaos" in the streets and in private life. Subtle messages
appealed to racial stereotypes by implying that the reforms of the
1960s and 1970s had strengthened the position of "undeserving"
welfare recipients (usually stereotyped as people of color)
and criminals at the expense of "good" White people. Soon moderate
Democrats and even some liberals began to collaborate in the
promotion of the backlash slogan, "tough on crime."

It wasn't simply economic and social tensions that underlay the
New Right's success in promoting its message on crime. "Law and
order" resonated with a powerful ideological strain within the U.S.
populace- the conservative worldview. You might think of
this worldview as the ideological default to which many White
Americans return when they are anxious, confused, or resentful.

The Prominence of the Conservative Ideological Worldview

As with so many of its policies, the
Right's conservative view of human
nature and a preeminent desire for an
orderly society drives its law-and-order
agenda. While the liberal, humanistic vision
of human nature is that people are basically
good, but are made bad by oppressive
poverty, abuse, addiction, racism, and/or
lack of opportunity, the Right's view is that
people are bad by nature. Rightists see
urges to sinful, aggressive, and selfish behavior
as human nature. Therefore, conservative
rightists often accuse liberals and leftists
of being "idealists," who fail to understand
that people are fundamentally flawed and
prone to anti-social acts.

For many rightists- especially those
in the Christian Right- the only fruitful
path of redemption lies in conversion to
conservative Christianity. This path, promoted
most notably by Charles "Chuck"
Colson, whose conversion occurred while
he served time in prison for crimes committed
as part of the Watergate scandal in
the 1980s, has become a small redemption
industry.1

The conservative view of humankind as
sinful and in need of self-discipline, harsh
punishment, and religious redemption to
keep people on the correct path stems
from a philosophical belief that society in
its "natural" state is chaotic. Therefore
society's first obligation is to establish a formidable
authority.2 Authority naturally
resides in the State, the Church, and the
family/community. In the words of
Thomas Hobbes, the 17th century English
philosopher who is the father of the conservative
worldview, "Before the names of
just and unjust can have place,
there must be some coercive
power."

Rightists, despite their occasional
adherence to values of love
and charity, believe that
humankind is divided into good
(worthy) people and bad (unworthy)
people. Bad or unworthy
people are irresponsible and/or
anti-social because of weakness,
self-indulgence, and lack of the
will to overcome their baser
instincts. The definition of
"good" and "bad" has many
dimensions, including moral,
cultural, economic, and political.
The designation "unworthy" can
be stark and unforgiving. Lack of
discipline should earn a "bad
reputation" and a watchful eye
from law enforcement officials.

The character trait of a strong
and law-abiding person, on the
other hand, is "social responsibility."
For such a person, the
first hurdle is to resist temptation
and, by doing so, live a good
life. The story of Hester Prynne,
the Puritan woman in Nathaniel
Hawthorne's The Scarlet Letter,
captures the conservative worldview.
Prynne, who became the town minister's
lover, was forced to wear a large, cloth
scarlet A for "adulterer" on her chest for
the rest of her life, making a clear statement
that she was an undisciplined person.

The public policy implications of this
worldview are enormous. For instance, if,
as in the liberal model, all people are potentially
good, preventive measures to keep
them from coming under influences that
will turn them "bad" are not simply justified,
but a practical response to a rising
crime rate. But if, as in the rightist worldview,
all people are born with a strong
urge to be "bad" and some are unable to
control those urges through discipline and
social responsibility, punishment and
isolation are the appropriate responses to
their behavior.

WHITE FEAR

It is a tragic irony that the European settlers greeted by native peoples when they arrived in
what the immigrants called the "New World" evolved a xenophobic worldview called
"Nativism." The term is used to describe the notion put forward by many immigrant settlers
and their offspring that the ideal citizen is a White, northern European, native (U.S.) born,
Protestant.

Xenophobia is a fear of (or a distaste for, or a hatred directed at) people, ideas, or customs
thought to be strange or foreign. In the United States, this often involves White racial nationalism.
When the new nation was founded in the late 1700s, there was an example of Xenophobia
prompting government policies in the passage of the Alien and Sedition Acts.
Periodically throughout U.S. history xenophobic Nativist movements have gained a mass
following; spreading their ideas and pushing for federal action and legislation to limit immigration
by people of color. Roberto Lovato calls the current manifestation of this phenomenon
"White Fear." "In white fear's eyes, any shade of brown is suspect," writes Lovato. And
just like previous periods of anti-immigrant bigotry, this fear justifies a "war against those
perceived as 21st century barbarians." Lovato explains that "White fear mobilizes Republican
and Democratic voters to defend their perceived racial interests under the guise of patriotism."

Acording to Lovato, "Even though ideas about race, ethnicity, culture and civilization are
fluid and murky, white fear is cohesive and entrenched." He notes that "White fear is
profitable. Bond issues for prison construction managed by major investment banks are
more profitable than school construction bonds for improving the decrepit, crowded public
schools." He adds that "prison construction bonds also depend heavily on a steady flow of
young, brown bodies of former students of de-funded schools, as do the crowded barracks
in Iraq's deserts."

Part of contemporary White fear is driven by demographic trends that suggest White people
will become a "minority" group sometime during the 21st century. Lovato warns this is creating
a "new wave of minority politics: white minority politics. Though rooted in California,
this new politics of fear is cropping up across the country as its promoters redefine who is
racial victim and who is racial oppressor, neatly inverting- and co-opting- the arguments
and terms of the civil rights movement."

The theme of law and order, as it stems
from the conservative worldview, sets up
a stark us/them dichotomy that makes it
possible for "deserving" people to place
"them" outside the boundaries of an orderly
and godly society. From this perspective,
once outside the boundaries of legitimate
society, "the other" is no longer the responsibility
of those who are good and worthy.

In order to advance the message that
attention to "them" is misplaced by liberals,
the Right launched its campaign to promote
"victim's rights" in the 1980s.
Building on the conservative worldview,
a "victims' rights" campaign allowed rightists
to introduce conservative tough-oncrime
policies without appearing to be
racist or opposed to individual rights and
liberties.

How Does Law and Order Play Out in Racial Terms?

In the United States, existing institutional,
systemic, and individual racism
magnify and reinforce this us/them
dichotomy.3 Because the criminal justice
system of every country serves as a means
of control over some members of that society
(and others who get caught up in it), it
always reflects the need of the State for control,
the political desire of leaders to stay in
power, and the norms and mores of behavior
favored by those leaders and usually supported
by at least a portion of the society's
members. In a country with the racial history
of the United States, we cannot be surprised
that Whites have always controlled
the criminal justice system and used it to
control people of color, especially African
Americans and increasingly all dark-skinned
people, including those from the Middle
East and South Asia.

In the ideological and political campaign
to promote "law and order," conservative
strategists have been careful to avoid any
mention of its agenda's racial implications.
After arguing for criminalizing certain
behaviors, especially drug consumption
and distribution, they never mentioned
how this would disproportionately affect
communities of color (where the State's
arrests for such behavior are higher than in
White and suburban communities). Some
of the academics who promote law-andorder
arguments have even maintained an
identity as liberals, and claim to be writing
in the interests of "the community."
Through this sleight of hand, rightist policy-
makers have constructed law-and-order
policies as a series of supposedly race-neutral
policies, although the outcome of these
policies has been to criminalize, to a vastly
disproportionate extent, the behaviors of
certain targeted groups, especially racial
minorities. Whether or not these law-andorder
policies were intentionally racist
may be open to debate, but many people,
especially people of color, connect the dots
and see their outcome as both intentional
and systemic.

You might imagine that an increased
emphasis on law and order would result in
increased attention to all forms of lawbreaking.
But addressing police brutality
and other forms of State violence clearly is
not the focus of law-and-order policies. Nor
is it the focus of the ideological camp that
promotes these policies. Such neglect of a
whole class of "victims"- those victimized
by police or military power- supports
the assertion that illegitimate racebased
practices are the single most
salient feature of the contemporary
criminal justice system. Rightists
often blatantly deny statistical
evidence of unequal rates of incarceration,
arrest, and punishment by
race or class for identical crimes, as
well as evidence of police and criminal
justice officials' presumption
of guilt according to the race of the
accused.4 Rightist Professor John
J. DiIulio, Jr., a prominent lawand-
order proponent who inaccurately
predicted a growing wave
of "super-predator" children, stated
that data on the administration of
capital punishment "disclose no
trace of racism…."5 But it is nearly
impossible to study the discrepancies
between incarceration rates
for people of color and those of
Whites for similar behaviors and
not conclude that these policies,
and those who defend them, are
racially motivated.

Ideological Contradictions in Law-and-Order Policies

Each sector of the Right does not necessarily
support the same policy solutions
to the issues of crime and punishment.
Various anti-crime policies create splits
and disagreements within the Right. For
example, rightist libertarians- who favor
the most limited role possible for government
- object to a punishment model that
requires a huge investment of government
funds, even when incarceration is privatized,
and prisons eliminate training and treatment.
The cost of building new prisons to
house and police a swelling prison population
increases government spending in
both the long- and short-term. Between
1985 and 1995, states and the federal government
opened one new prison a week to
cope with the flood of inmates into the
prison system.6 Much of this increase
resulted from the increasing criminalization
of non-violent offenders, through threestrikes
laws, mandatory sentences, and
drug laws. Referring to the many economic
interests that now have a vested interest in
maintaining high rates of incarceration,
some critics, notably Angela Davis, have
called this the emergence of a "prisonindustrial
complex." Police departments,
private prison corporations, unions of
prison guards, rural communities eager for
prison jobs, and businesses that provide prisons
with food, security, and maintenance
serve as pressure groups to assure the continuation
of ever-increasing funding for prisons
and to support tough on crime policies
and drug laws that continually escalate
rates of imprisonment.7

Widespread imposition of the death
penalty also creates dissonance for some
rightists. Between 1995 and 2003, prisoners
in the United States were executed
at an average rate of one per week.8
Although execution is a more expensive
form of punishment than life-long imprisonment
(due to the cost to the
State of legal appeals), until
recently its use has been steadily
increasing, driven, in large part,
by the Secular Right. Some
conservatives are disconcerted
by the revelation, as a result of
DNA testing, that innocent
prisoners have been executed.
Others more critical of the
criminal justice system, have
not been surprised by these
cases.

Finally, some rightists are
uneasy with the growth of federal
domination over state
criminal justice systems.
Despite the traditional conservative
commitment to "states'
rights," criminal prosecutions
usually conducted at the state
level have increasingly been
taken over by the federal government,
as the law-and-order
crime model has grown in
influence. For decades, crimes
that involve crossing state lines
have been classified as federal
crimes and are prosecuted in
federal courts. Organized crime
cases and many drug and firearms crimes
have swelled the number of federal cases.
But journalist Ted Gest describes a "creeping
federalization of criminal prosecutions"
of crimes that occur at the local
level. Liberals have supported some of this
growth in the role of federal courts. Because
they hope, for instance, that hate crimes,
abortion clinic bombings, and stalkings will
often be prosecuted more vigorously at the
federal level than at the state level. But, as
both political parties compete to appear
tough on crime, much of the federalization
of the criminal justice system is directed at
drug offenders and non-violent criminals.
It thereby diminishes the role of the states
in fighting even local crime.9 So much for
states' rights, a key principle of the Right's
ideology.

Why would rightists persist in favoring
these "big government" aspects of toughon-
crime policies? The prevention and
rehabilitation model, which has largely
been defunded, ultimately costs less in tax
dollars because it addresses the causes of
crime and the rehabilitation of prisoners.
The answer lies in the ideological compatibility
of apparently contradictory ideas
when they are held within an overarching
worldview that explains the contradictions.
Two especially strongly held conservative
beliefs are not subject to debate - criminals
must be punished, and government
should remain small. But "smallness" does
not mean that the government should be
weak. Thomas Hobbes' admonition that
States must establish a strong power that can
exert control undergirds the idea that a
massive program of incarceration is ideologically
acceptable for conservatives who
don't believe in "big government." In this
case, many conservatives who believe that
criminals are bad and must be punished in
order to protect good, responsible (read
White) people accept a strong role for government
as appropriate and consistent with
a conservative ideology. All sectors of the
Right oppose the one policy solution that
is most likely to solve the problem of crime
in the long term – the creation of jobs, housing,
economic opportunity, and universal
health care that includes treatment for
addictions.

Why Is the Law-and-Order Model so Widely Accepted?

People who are ideologically progressive
or who are disproportionately subjected to
the excesses of "tough on crime" policies
and practices, find it hard to understand the
widespread vicious, mean-spirited attitude
toward people labeled as criminals. For
instance, what would make a crowd gather
outside a death penalty execution to cheer
it on? What beliefs could make the public
indifferent to the horrific conditions and
physical abuse so common in contemporary
U.S. prisons? Why has "tough on
crime" become a bottom line necessity for
any successful politician, even when people
know that a substantial number of
innocent people have been imprisoned, or
even executed, through overzealous or
malicious prosecution, lack of adequate
legal defense, and/or racism?

As I mentioned above, several factors
that might inspire such attitudes are:
racism; fear and anxiety for physical safety
and security; economic anxiety that leads
people to seek a scapegoat who becomes the
"other;" and a sense of growing chaos and
declining order. These conditions clearly
lead to a more punitive-minded general
public, especially when political leaders and
the media reinforce their inclinations.

Perhaps another important part of the
answer lies in the widespread acceptance of
the conservative ideological worldview,
especially its view of human nature, by
many average Americans. I suggest
that many in the United States
see themselves in much the same way
that philosopher Thomas Hobbes
saw humans- prone to sinfulness
in the form of sloth, moral depravity,
envy, covetousness, lust, and
aggression. And they see their lives
as a process of self-discipline to
overcome these urges.

The struggle to live a life of
virtue and dutifulness rather than
sinfulness is an abiding source of
pride in mainstream U.S. culture.
To be a "good man" or a "good
woman" is no small accomplishment.
Average people know how
much effort it takes to accomplish
this identity. Accompanying the
pride felt by those who work to
maintain their virtue is a deep
resentment of those they feel do not
work and sacrifice to overcome
their sinful urges. This resentment
can turn especially bitter when
"good people" perceive that "bad
people" are reaping benefits that
should rightfully be theirs. The
resulting hatred is a major factor
driving the country's support for tough-oncrime
policies and the law-and-order
model. The common sentiment – "The bad
people ruin it for all the rest of us" – captures
much of the rightist worldview. To
coddle the "bad" people is to devalue the
hard work of the "good."

To keep this system in place, two things
are necessary: 1) there must be widely
shared agreement on what is "good," and
2) there must be a strict separation between
the "good" and the "bad." But in modern
society, the definition of what is "good"
becomes more confused every day, causing
status and identity anxiety. Changing definitions
of "good" and "bad" can make traditional
rightists resentful and angry,
leading them to charge progressives, secularists,
and others who disagree with
them as being "moral relativists." When
social mores change- for instance, when
obtaining an abortion or living together as
an unmarried heterosexual couple becomes
socially normalized behavior- the former
definition of "good" and "bad" becomes
contested territory. Most progressives hail
such expansions of individual rights as
progress for human rights. For conservatives,
they represent a blurring of the lines,
and a further erosion of the status of "good"
people who resist "decadent" urges and
model "virtuous" human behavior.

As free-market capitalism becomes more
dominant and unregulated in U.S. society,
subjecting workers to increasing job instability
and pay fluctuations, many workers
respond with economic apprehension and
status anxiety. Further, private enterprise
responds almost exclusively to its predominant
goal – maximizing profit. To sell
products, family values can be mobilized,
but if individualistic, "anti-family" attitudes
can more successfully sell goods, the market
will promote those values. This
"amoral" profit-driven ethic often conflicts
with established notions of good and
bad or right and wrong, adding to
the sense of dislocation on the part
of many people, who then seek a target
for their resentment over all
that has changed "for the worse."
Such an environment offers the
"criminal"- whose very existence
defines those who are not criminals
as "good"- as a convenient and
serviceable scapegoat. And in a society
characterized by institutional
and individual racism, a "criminal"
or "bad" identity is disproportionately
attached to dark-skinned people.

Conclusion

The Right's law-and-order campaign
has led to an increase in the
severity and duration of incarceration
since the early days of the
Ronald Reagan Administration.
Political moderates, and even liberals,
collaborated in policies that
have embodied reactionary intentions
and racist outcomes. The
mainstream media, by elevating
sensational stories of criminals and
victims to attract audiences and
advertisers, have promoted a view of crime
as rampant and frightening. By associating
inner-city residents of color with guns and
drugs, rightist politicians have promoted
an ideological message that criminals are
individuals who have choices and choose
crime and victimization of those weaker
than they.

Driven by a conservative ideological
worldview, rightists and average people in
the United States now support a huge
prison industry that incarcerates people at
rates second only to Russia in the world.
Progressives must challenge this runaway
law-and-order campaign by redirecting
attention to the root causes of crime, such
as poverty, abuse, addiction, and lack of
opportunity, and by challenging the demonization
and scapegoating of "criminals."
This work is part of a larger campaign to
revive the public will to address the economic
insecurity that plagues so many in
the United States, while the few live in
increasing luxury.

Jean Hardisty is Founder and President
Emerita at Political Research Associates and
a Senior Scholar at the Wellesley Center for
Women, Wellesley College.
Editor's note: This article appears in
PRA's Defending Justice Activist Resource Kit.